October 2022 S M T W T F S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31
- OH10: Window tint violation justified impoundment and inventory, even though discretionary
- NY2: Franks claim has to be fully developed; it’s more than just a false statement
- DC: Gant search incident for open containers did not permit search of a small plastic box
- CA11: Questions about travel plans were not an unreasonable extension of a traffic stop
- SC: Request for consent with “do you mind” met with “I do but …” not voluntary. Also no RS for continuing stop.
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Fourth Amendment cases,
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"If it was easy, everybody would be doing it. It isn't, and they don't."
“I am still learning.”
—Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property."
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
---Pepé Le Pew
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Category Archives: Standards of review
Plaintiff’s probable cause determination in his underlying criminal case was given preclusive effect in his later § 1983 case. Wilcox v. City of L.A., 2022 U.S. App. LEXIS 24350 (9th Cir. Aug. 29, 2022). Plaintiff overcame qualified immunity. “Under Louisiana … Continue reading
Hot pursuit justified an officer in one jurisdiction following defendants into another one after a robbery report on their car. Commonwealth v. Hobel, 2022 PA Super 86, 2022 Pa. Super. LEXIS 202 (May 10, 2022) (decided under state statute). “A … Continue reading
D.Me.: Settled law at the time means exclusionary rule not applied, even if the law was later changing
Officers relied on settled law in this circuit that the search incident was valid. Maybe it wouldn’t be later, but it was at the time. The exclusionary rule should not be applied under Davis. “Given the similarity of these two … Continue reading
An alleged Fourth Amendment violation is not an actual innocence claim for habeas. “Fourth, he argues that he is actually innocent given that he was denied his right to counsel when investigators continued to interrogate him, despite his unequivocal request … Continue reading
USDJ doesn’t second guess USMJ’s credibility determinations in the R&R on a motion to suppress. United States v. Bowman, 2022 U.S. Dist. LEXIS 69156 (E.D.Tenn. Apr. 14, 2022).* A bag left outdoors at an apartment complex for more than a … Continue reading
A crime victim isn’t unreliable for informant hearsay just because of animosity toward the defendant. United States v. Collins, 2022 U.S. Dist. LEXIS 63999 (W.D.Ky. Feb. 7, 2022). The trial court erred in finding defendant’s consent to a blood draw … Continue reading
Defendant’s car was permissibly seized for overtinting, and the subsequent search was reasonable as inventory. United States v. Perez, 2022 U.S. App. LEXIS 8697 (8th Cir. Apr. 1, 2022).* “Even assuming arguendo that Thrasher could make a substantial preliminary showing … Continue reading
In a state where the appellate courts are overly solicitous of police calling for drug dog sniffs in traffic stops, this court finds the stop prolonged for the drug dog to get there without reasonable suspicion. Neyhard v. State, 2022-Ohio-1098, … Continue reading
Search warrant applications are reviewed on the “four corners” of the affidavit. “New evidence” isn’t considered. United States v. Shade, 2022 U.S. Dist. LEXIS 43451 (6th Cir. Mar. 9, 2022). There was reasonable suspicion for the officer to expand the … Continue reading
Defendant’s move within his lane was clearly not a violation of the lane change statute, so the stop based on that was not objectively reasonable. The product of the stop is suppressed. People v. Jackson, 2022 IL App (3d) 190621, … Continue reading
Probable cause to arrest and to search are different things. (One doesn’t automatically lead to the other.) Salcedo v. City of New York, 2022 NY Slip Op 00523, 2022 N.Y. App. Div. LEXIS 501 (1st Dept. Jan. 27, 2022). The … Continue reading
E.D.Pa.: Govt’s post-trial concession search was illegal undermines half the counts of conviction, and no harmless error on remainder
The government concedes after conviction on seven counts that three of the counts against defendant were the product of an illegal search. They argue the remainder can stand without it. It can’t because, if there was any doubt for any … Continue reading
Whether a traffic stop was unreasonably extended for a drug dog to arrive is reviewed for clear error. The stop here was for overtinting, and the officer processed a warning by entering the information into the patrol car’s computer. He … Continue reading
The trial court suppressed the search of defendant’s backpack as incident to his arrest. The trial court heard conflicting testimony on whether it was within his reach, and concluded it was not. That’s binding on the standard of review. State … Continue reading
The officer obtaining the search warrant here was found to have mistakenly testified in federal court that he did not personally present this warrant to the magistrate. Admission of that mistake was credited here that he did present the affidavit. … Continue reading